Labor Law Pointers - Volume V, No. 8

Labor Law Pointers


Volume V, No. 8

Wednesday, June 1, 2016


A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends


From the Editor:


I need to start this month’s edition with note regarding our great personal and professional loss.  Harry Mooney, our partner, a supremely talented trial attorney and even better person, passed away on May 10.  Harry was a gentleman from the second he woke up until the second he went to sleep and never passed by a younger attorney without stopping to see how they were doing and to provide whatever help he could offer, and Harry’s advice was always right on target.  We miss you Harry.


Do you have a situation; we love situations. 


Makes me smile every single time I hear that phrase from one of our readers.  We really do love situations and helping our friends devise a plan to deal with whatever situation may have leapt up in their day.  As most of you already know, I totally stole that line from Dan Kohane, our resident insurance coverage guru.  He gets calls every day with questions and he always joked that the calls all start with “I have a situation.”  I really thought he was joking about how many of the calls started out that way, until I started getting so many calls with labor law questions, a great many of them starting out in just that manner. 


By the way if you do not get Dan’s newsletter, Coverage Pointers, I recommend that you give it a try.  Click on the hyperlink and tell Dan you want to be added to the distribution list and he will hook you up.  Coverage Pointers summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders with a read-at-a-glance summary of important decisions as they happen.  Dan Kohane


I am now OSHA 10 Construction certified.  Thought that given the amount of time I spend discussing safe construction practices with clients, questioning plaintiff’s about them and exploring options with experts in the field I thought that the least I could do was take the class as well.  I think it was time well spent and that it will help me in my daily practice. 


By the way it reinforced for me something I have believed for many years, there is no complete replacement for in person training.  I had the option of taking the certification classes in person or online.  I have always offered in person training but given the distribution of claims teams across the state and country we have been offering webinars for those interested.  We are always available to train in person, it just makes for a two way discussion of topics and allows the claims professionals or attorneys the opportunity to ask real world questions, usually about cases they have on their desk at that moment.  Call or email and we can arrange training for your team.


Slim month from the departments, there is one case I like, just because the facts are so interesting.  Plaintiff is working an athletic field and at the end of the day is locked in.  He tries to climb the fence to get out and falls.  The claim is section 200 and negligence.  Two questions, first is it a means and methods case or a dangerous condition case and second is a locked gate a dangerous condition.  Read Chris Potenza’s analysis below to find the answer.


Enjoy the arrival of summer, the lengthening of our days and call of email me with any “situations”, questions of training requests.  See you all next month.




David R. Adams
Hurwitz & Fine, P.C.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916

Fax:  716.855.0874

Cell:  716.553.6901
Email:  [email protected]
H&F Website:


Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.


Royce v DIG EH Hotels, LLCe

May 19, 2016

Appellate Division, First Department


Plaintiff allegedly fell off a ladder while attempting to replace a gel that altered the color of one light on a temporary lighting stand secured to the floor by sandbags. The trial court granted defendants’ motion to dismiss the Labor Law § 240(1) claims, and denied plaintiff’s motion for partial summary judgment on that claim.d


Labor Law § 240(1) (DRA)


The First Department noted plaintiff’s work entailed moving audiovisual, staging and lighting equipment into a hotel ballroom, assembling, setting up and positing the equipment as necessary for its use in an event, and removing it after the event added. Therefore, the court found no evidence that any of this work “altered” or caused a substantial or physical change to the building. As a result, the trial court properly dismissed this claim..


PRACTICE POINT:  Joblon rears its head again.  The rule for an alteration is simple in its definition, but complex in its application.  To be an alteration to the building or structure the Court of Appeals held that it needs to be “a significant physical change to the configuration or composition of the building or structure".  Here the change was temporary and thus could not be significant and, in fact, the building was not altered in any way.


Grant v Solomon R. Guggenheim Museum

May 24, 2016

Appellate Division, First Department


Plaintiff allegedly was injured when a crate of glass he was preparing for offloading from the back of a flatbed truck for window installation tipped over onto him, knocking him to the ground. The trial court granted defendants Solomon Museum and F.J. Sciame’s motion for summary judgment dismissing plaintiff’s complaint, The trial court also denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1), and denied defendant Roehl’s motion to dismiss the common-law negligence claim against it.


Labor Law § 240(1) (DRA)


The First Department held that preparing a six-foot tall crate weighing at least 1,500 pounds for hoisting posed an elevation-related risk for plaintiff’s within the meaning of the statute such that the crate was “an object that required securing for the purposes of the undertaking.” There was evidence that various devices, including wooden blocks for bracing, would have stabilized the crate while it was being maneuvered into a position to have slings placed on it for hoisting by the crane. Thus, the court held since plaintiff was never provided with proper safety devices, his use of the J-bar to move the crate into position was not the sole proximate cause of the accident.


PRACTICE POINT:  Sometimes I really think that courts have gone too far, this is one such time.  Here we have a crate, it is not being hoisted, it is not being secured, it is being moved on the bed of a truck so that it can be hoisted at some point in the future.  The crate tips over.  Granted there were ways to prevent the crate from tipping over but is simply moving a crate on a flat surface, and having the crate tip over a 240(1) case.  Why does it matter that the crate was going to be hoisted, that was not the task being undertaken at the time the crate tipped.  I do not think this decision is appropriate.  It seems to open the door for a 240(1) claim every time anything tips over on a construction site. 



Labor Law § 200 and Common-Law Negligence (VCP)


The Frist Department affirmed the dismissal of the Labor Law § 200 claims against Solomon Museum and Sciame. Since the positioning of the flatbed truck was a temporary condition necessary for the crane to unload in the limited space available, it was not a dangerous work site condition but part of the means and methods of the work, over which these defendants exercised no supervision or control.  Defendant Roehl however, which transported the glass to the construction site, is not entitled to summary judgment dismissing the common-law negligence claim as against it, since the surveillance video capturing the accident raises issues of fact as to whether the truck driver caused or contributed to the toppling of the crate by reaching for the J-bar.


Kolenovic v 56th Realty, LLC  

May 24, 2016

Appellate Division, First Department


Plaintiff allegedly fell from a wet ladder after fixing a leaky roof while it was still raining. Defendant 56th Realty is the owner of the building and plaintiff’s employer, and defendant Glenwood provided management services for the subject building. Defendant MAAC is the identifying name of the part of the building containing retail space, which is rented out for art and antique galleries.


Plaintiff testified his fall was caused by the wet and shaking ladder, by the wind, and because at the top of the ladder there was not enough room for the safe placement of his feet. The trial court denied MAAC’s and Glenwood’s Cross-motion to dismiss the Labor Law § 240(1) claim. 


Labor Law § 240(1) (DRA)


The First Department reversed as to MAAC because it is not a corporate entity and there is no evidence in the record contradicting the showing that it is simply the name of the portion of the building containing gallery spaces that are rented out to vendors of art and antiques.


With respect to Glenwood, the court held it was not the alter ego of plaintiff’s employer, 56th Realty, and plaintiff was engaged in repairing the roof which is a protected activity. Based on plaintiff’s testimony regarding the ladder shook, was wet and was too close to the wall to allow room for his feet on the reigns, Glenwood failed to demonstrate as a matter of law that plaintiff was provided with proper protection.


PRACTICE POINT:  Remember the proper steps to analyze a labor law case.

  1. Is the plaintiff an appropriate plaintiff?
  2. Is the defendant an appropriate defendant?
  3. Is the overall project a covered project?
  4. Is the event leading to the injury the type of event the labor law is designed to protect against?


Run each of these inquires for each defendant.  Here we had 2 defendants who got out for differing reasons.  The employer because comp is the exclusive remedy under comp law section 11 and a property section designation which is not an actual entity with an ownership interest in the building.  Plaintiff was “so employed” and thus appropriate.  The job or project was a repair, there was a leak, it needed to be fixed, and that is not maintenance.  Then there is the event, plaintiff was on a ladder which shifted causing him to fall.  That is a safety devise which did not provide protection to the plaintiff.  Follow these steps and analyzing a labor law case is much easier.


Costa v State of New York  

May 26, 2016

Appellate Division, First Department


Claimant allegedly was injured when a metal beam collapsed and struck him inside a building located at Pier 40. At the time of the accident, title ownership of Pier 40 was held by the State of New York, although all day-to-day operations were under the authority and manager entry of the Hudson River Park Trust, a public benefit corporation created by the Legislature run 1998.


After plaintiff filed a notice of claim against NYC, the City moved for summary judgment on the ground that it did not own Pier 40 because it was owned by the State of New York. The Court of Claims granted the City’s motion. The Court of Claims also denied claimant’s motion to file a late notice of claim against their State of New York because the Legislature had transferred all of the State’s legal obligations regarding the Trust.


Claimant appeals arguing that The Hudson River Park Act of 1998 did not carve out an exception to the absolute liability imposed on owners under the Labor Law.


Labor Law § 240(1) (DRA)


The First Department stated that to determine whether the Legislature intended to exempt the State from owners’ liability under the Labor Law requires a careful review of the Hudson River Park Act’s terms and provision. The court held that, by its explicit terms, the Act does not alter ownership and title to the property and  the legislature intended the Act to exempt the title owner from any liability that would otherwise flow from its ownership of the Hudson Park Property that was turned over to the Trust.


The court also determined the Act expressly states that “[u]pon the coming into existence of the trust, the trust shall succeed to all contracts, leases, licenses and other legal obligations respecting the park to which its predecessors are a party at or after the effective date of this act.” Therefore, the court held the legislature intended the Trust to succeed to all the State’s obligations arising out of its ownership rules of park property.


PRACTICE POINT:  Suffice it to say that a determination as to who is an owner for the purposes of the labor law was never move complicated that this one.  I do not expect this type of scenario to come up again in the near future so the take away on this one is always look to see if the defendants names as owners really are or if there is a defense based on their role or ownership interest the same way we look for risk transfer options.



Pacheco v 32-42 55th St. Realty, LLC  

May 11, 2016

Appellate Division, Second Department


Plaintiff allegedly was injured when he fell from a scaffold while he was working at a construction site. The trial court denied defendants’ motion under CPLR 3211(a)(5) to dismiss plaintiff’s Labor Law §§ 240(1) and 200 claims as barred by a general release, and denied plaintiff’s cross-motion to preclude defendants from asserting an affirmative defense based on a general release.


Labor Law § 240(1) (DRA)


“A release is a contract, and its construction is governed by contract law” and “a valid release constitutes a complete bar to an action on a claim which is the subjects of the release. However, a release may be invalidated for any of the traditional bases for setting aside written agreement, namely, duress, illegality, fraud or mutual mistake. Moreover, there is requirements that a release recovering both known and unknown injuries be “fairly and knowingly made.”


Although defendants submitted a general release executed by plaintiff, which, by its terms, barred the instant action against, plaintiff's allegations were sufficient to support a possible finding that defendants procured the release by means of fraud and that the release was signed by the plaintiff “under circumstances which indicate unfairness.”


With respect to plaintiff's cross-motion to preclude defendants from asserting an affirmative defense based on the general release, the Second Department held defendants submitted evidence controverting plaintiff's account of how the release came to be signed. These submissions raised a triable issue of fact as to whether the release was enforceable.


PRACTICE POINT:  For a release to be enforceable it must not be made under duress be illegal, fraudulent or made by mutual mistake.  More specifically, a release which covers both known and unknown damages must be fairly and knowingly made. 



Niewojt v Nikko Constr. Corp.

May 25, 2016

Appellate Division, Second Department


Plaintiff was employed by a painting subcontractor on a project at a high school, and defendant was general contractor. Plaintiff and his coworker were locked into the school’s gated sports stadium area, and plaintiff slipped and fell while scaling the six-foot high fence to exit the area.


Plaintiff asserted that the locked gate constituted a dangerous condition and that defendant negligently scheduled and placed workers on site such that they could be locked into the stadium area at night. The trial court granted defendant’s motion to dismiss the Labor Law § 200 and common-law negligence claims, finding plaintiff’s act in climbing the fence to exit the stadium area was the sole proximate of his alleged injuries.


Labor Law § 200 and Common-Law Negligence (VCP)


The Second Department reversed and denied defendant's motion for summary judgment dismissing the Labor Law § 200, common-law negligence, and loss of consortium claims.  The plaintiffs allege that the defendant is liable because the locked gate constituted a dangerous condition and that the defendant negligently scheduled and placed workers onsite such that they could be locked into the stadium area at night. Although the Supreme Court properly determined that the defendant failed to meet its prima facie burden of demonstrating either its lack of constructive notice of the dangerous condition or its lack of supervision and control of the scheduling and placement of workers onsite, the Supreme Court erred in determining that the plaintiff's act in climbing the fence to exit the stadium area was the sole proximate cause of the injuries as a matter of law. An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct. Here, viewing the evidence in the light most favorable to the plaintiff, the Second department found a triable issue of fact as to whether plaintiff’s act in scaling the fence was a natural and foreseeable response to a condition allegedly created by the defendant's negligence.  


Pazmino v 41-50 78th St. Corp.  

May 25, 2016

Appellate Division, Second Department


Plaintiff allegedly was injured on a renovation project where workers on the roof of the building piled pieces of dismantled metal scaffolding, wood, and bricks, in preparation for lowering the debris to the ground by rope. Plaintiff testified the plan was to bring the metal scaffolding down first. At the time of his accident, plaintiff and another worker were at ground level receiving pieces of metal scaffolding.


As he bent over to unload scaffolding, plaintiff was struck on the head by a piece of wood. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.


Labor Law § 240(1) (DRA)


To prevail on plaintiff’s motion for summary judgment under a “falling object” theory, he muster demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking. Plaintiff “must also show that the object fell … because of the absence of inadequacy of a safety devices of the kind enumerated under the statute.” 


The Second Department held the trial court properly denied plaintiff's motion as his evidence was insufficient to establish the wood fell because of the absence or inadequacy of a safety device. His mere belief that the wood that struck him was a part of the hoist mechanism is insufficient to establish that it was a component of the safety device itself.


PRACTICE POINT:  Where, as here, there is a question of fact as to how the accident happened, the court, as the trier of questions of law only, may not make a decision based on the law where the facts are still in question.  Questions of fact are left to the jury.  Had the plaintiff been able to determine, and not merely speculate, where the piece of wood came from, and had it been a piece of wood which needed securing, he would have prevailed on his motion. 










12 NYCRR § 23-1.7(f) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Vertical passage.


§ 23-1.7(f) Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.


Gielow v Rosa Coplon Home., 251 AD2d 970, 674 NYS2d 551 (3d Dept 1998);

Waszak v State, 275 AD2d 916, 713 NYS2d 397 (4th Dept 2000);

O’Hare v City of New York., 280 AD2d 458, 720 NYS2d 523 (2d Dept 2001);


Torkel v NYU Hospitals Center, 63 AD3d 587, 883 NYS2d 8 (1st Dept 2009);


Baker v City of Buffalo, 90 AD3d 1684, 936 NYS2d 457 (4th Dept 2011);


Morris v City of New York, 87 AD3d 918, 929 NYS2d 585 (1st Dept 2011);


Lynch v 99 Washington, LLC, 80 AD3d 977, 915 NYS2d 353 (3d Dept 2011);


Harrison v State, 88 AD3d 951, 931 NYS2d 662 (2d Dept 2011);


Siguenza v Cemusa, Inc., 127 AD3d 727, 6 NYS3d 568 (2d Dept 2016);








Gielow held reg did not apply to π injured when she slipped at work site b/c she was not attempting to access working levels above or below ground when she was injured while checking pins along bottom of wooden form, but instead had already descended into excavation site w/o injury.

Waszak held reg did not apply.

O’Hare held reg sufficiently specific to support claim arising out of accident in which plank maintenance engineer was using to exit concrete pit area broke.

Torkel held reg inapplicable when a ramp which bridged height differential b/w a sidewalk curb & adjacent road surface collapsed.

Baker held reg sufficiently specific to support claim, but found an issue of fact whether ∆ GC violated reg governing means of access through a vertical passage where π climbed through an opening that had been cut in a wall. Morris  held reg applied to π when he fell from temporary step at bottom of concrete stairway at worksite where snow & debris allegedly accumulated in the hallways & passagesways π had to traverse.

Lynch held reg did not apply when π stepped out of temporary job site trailer & onto free-standing aluminum stairwell allegedly misaligned with doorway of trailer b/c work not performed in trailer & at timer of accident π not performing any work but rather had entered trailer to return tools & sign his time sheet as he was leaving work.

Harrison  found tugboat in which π was standing, in attempt, during bridge project, to lower generator from pier was not working level below ground requiring stairway, ramp, or runway under reg.

The jury in Siguenza resolved credibility issues agains π as to the happening of the accident and the availability of alternate means for descending from the truck,  which the court held could have fairly been interpreted as finding that any violation of the reg was not a proximate cause of the accident.   d


\Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York


Labor Law Pointers


David R. Adams

Associate Editor
V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor
Jennifer A. Ehman


Associate Editor
Marc A. Schulz


Labor Law Team


            David R. Adams, Team Leader                                           Steven E. Peiper

            [email protected]                                                 [email protected]


            Dan D. Kohane                                                                     Jennifer A. Ehman

            [email protected]                                                            [email protected]


            Michael F. Perley                                                                  Marc A. Schulz

            [email protected]                                                            [email protected]


            V. Christopher Potenza                                                       

            [email protected]                                                           



Hurwitz & Fine, P.C.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202

Phone:  716.849.8900
Fax:   716.855.0874

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